Contribute to the Real Estate Law Section Newsletter

All Section Members are invited to contribute to the Newsletter. Please submit articles,
practice pointers, and other contributions in MS word format via e-mail to:

James J. Killean
Ireland Stapleton Pryor & Pascoe, PC
717 17th Street, Suite 2800
Denver, Co 80202
(303) 623-2700
jkillean@irelandstapleton.com

Joseph E. Lubinski
Ballard Spahr LLP
1225 17th Street, Suite 2300
Denver, CO 80202
(303) 292-2400
lubinskij@ballardspahr.com

Eben P. Clark
BakerHostetler
1801 California Street,Suite 4400
Denver, CO 80202-2662
(303) 764-4042
eclark@bakerlaw.com

Jean C. Arnold
Arnold & Arnold, LLP
7691 Shaffer Pkwy, Suite A
Littleton, CO 80127
(720) 962-6010
jeanarnold@arnoldarnold.com


Real Estate Header
Spring 2016
Colorado Bar Association
Real Estate Law Section

In this issue...
HAUER V. MCMULLIN: CREATION OF AN IMPLIED COMMON INTEREST COMMUNITY

Many communities in Colorado constitute "common interest communities" under the Colorado Common Ownership Act (C.R.S. §38-33.3-100.3 et seq.). A "common interest community" is "real estate described in a declaration with respect to which a person, by virtue of such person's ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvements of other real estate described in a declaration." C.R.S. §38-33.3-103(8). In most instances, common interest communities are expressly and intentionally created to govern planned communities and condominiums. Occasionally, however, common interest communities may be the unintended result of the way easements or other covenants are drafted.

A recent Colorado Court of Appeals case, now before the Colorado Supreme Court, examines the circumstances under which a common interest community might be created by implication. In Hauer v. McMullin, 2015COA90, the Colorado Court of Appeals, on a challenging set of facts, determined that an implied common interest community had been created for the Two Rivers Estates subdivision in the absence of a traditional written "declaration" or formation of a homeowner's association. In 2001, the Rio Blanco Board of County Commissioners approved a subdivision of thirty acres of property owned by the McMullins. This subdivision created 7 lots and 17 acres of "common open space." Under "plat notices", the plat recited that "Common ownership and maintenance are by the home owners association" and "The covenants that accompany the subdivision are filed in the office of the Rio Blanco County Clerk and Recorder in Book Page ." Notwithstanding the plat notes, no homeowners association was ever formed for Two Rivers Estates and no separate covenants ever recorded.

In 2010, the McMullins sold the 7 lots to the plaintiffs. The next year, the lot purchasers filed a lawsuit seeking to quiet title to the "common open space" in the name of the unincorporated (and otherwise unnamed) Two Rivers HOA. They argued that the subdivision plat and other documents constituted declarations, thereby creating a common interest community, and that the 17 acres of "common open space" was the property of the homeowners association. The McMullins argued that they retained title to "open space", continued to pay taxes on the property, and that no community existed. Relying principally on Evergreen Highlands Ass'n v. West, 73 P.3d 1 (Colo. 2003) and Hiwan Homeowners Ass'n v. Knotts, 215 P.3d 1271 (Colo.App. 2009), by majority opinion the Court of Appeals affirmed the trial court's determination that an implied common interest community had been created by virtue of the plat language. The Court of Appeals further determined that the "common space" was owned in undivided interests by the 7 lot owners, thereby making the community an implied condominium rather than an implied planned community like most lot subdivisions.

The most significant import of the Court of Appeals decision is the creation of an implied common interest community without the existence of a written "declaration" (as that term is commonly understood to mean). Unlike in previous instances where common interest communities were created by implication, the Court in Hauer recognized a common interest community through the existence of only notes on a plat. On March 21, 2016 the Colorado Supreme Court granted cert to review the case (captioned 2015SC701).

Online Foreclosure Case Managment System To Be Unveiled in Denver

Please see this press release from the City and County of Denver announcing that Denver will be the first county in Colorado to utilize a fully online foreclosure case management system. Denver's announcement comes on the heels of the 2015 amendment to C.R.S. §38-38-110 allowing public trustees to conduct foreclosure sales online.

CLE Programs

34th Annual Real Estate Symposium – July 21-23, 2016 in Breckenridge

The tradition continues with the outstanding Real Estate Symposium—this year in wonderful Breckenridge and co-sponsored by the Colorado Bar Association Real Estate Section.

  • - How Hotel Transactions are Different from Other Commercial Real Estate Deals
  • - Drones and Real Estate – What You Need to Know
  • - Easier Said Than Done: Rights of First Offer, Rights of First Refusal and Options
  • Sign-up now while space (and hotel rooms) is still available! Online meeting registration is available here.

    Don't Forget You Can Use Your $50 CLE Discount When Registering For The Symposium (or any other qualifying CLE). Download Your CertificateHERE

    CBA-CLE Real Estate Books:

    Check out the Real Estate Practice CBA-CLE publications, including: Colorado Real Estate Practice, Colorado Title Insurance Practice, and Public Trustee Foreclosure in Colorado -http://cle.cobar.org/Books/Real-Property .

    Topical Lunches

    As a reminder, the Section hosts monthly topical CLE luncheons. The next luncheon will be June 2, 2016 at the DTC Maggiano's. Timothy J. O'Neill, Assistant Regulation Counsel in the Office of Attorney Regulation will present "Worst of the Worst: Lessons from True Tales of Ethical Misconduct." This program is good for 1 ethics CLE credit!

    Books

    The third edition of Geoff Anderson's Colorado Quiet Title Actions is now available. Get it here!

    Notices

    High Altitude Discussion List

    The High Altitude Discussion List continues to generate lively and interesting discussion among members. Whether you receive each post as it is emailed or prefer to receive only the digest summary, you are sure to learn from your colleagues’ questions and answers. The High Altitude Discussion List continues to generate lively and interesting discussion among members. Whether you receive each post as it is emailed or prefer to receive only the digest summary, you are sure to learn from your colleagues’ questions and answers. To learn more about the discussion list or to subscribe, visit the discussion list’s webpage here. visit the discussion list’s webpage.

    Section Council Meetings

    As a reminder, regular meetings of the Council are held the third Tuesday of each month at 3:00 p.m. at the CBA’s offices at 1900 Grant Street in Denver and all Section members are welcome to attend.

    Minutes of March Real Estate Section Council Meeting

    Courtesy of Charles Calvin, Faegre Baker Daniels LLP (charles.calvin@faegrebd.com), Secretary of the Real Estate Section Council, the minutes of the March 15, 2016 meeting of the Council can be reviewed here.

    Did You Know?

    The federal Financial Crimes Enforcement Network (FinCEN) recently issued Geographic Targeting Orders requiring title insurance companies to identify the individuals behind entities used to invest in all-cash, high end residential real estate located in Manhattan in New York City, New York and Miami Dade County, Florida. The targeting orders are in effect from March 1, 2016 through August 27, 2016, after which time FinCEN may elect to issue replacement orders, issue additional orders (potentially targeting other geographic areas), or allow the orders to lapse. Additional information can be found here.

    2015–16 Real Estate Law Section Executive Council Roster

    Council Officers

    Chair

    Daniel A. Sweetser
    The Sweetser Law Firm PC
    1741 High St
    Denver, CO 80218
    (303) 321-3575
    dsweetser@sweetserlaw.com

    Vice Chair

    Nicole R. Nies
    Hoffman Crews Nies Waggener & Foster LLP
    5350 S Roslyn St Ste 100
    Greenwood Village, CO 80111
    (303) 860-7140
    nnies@hcnwf-law.com

    Secretary

    Charles D. Calvin
    Faegre Baker Daniels LLP
    1700 Lincoln St Ste 3200
    Denver, CO 80202
    (303) 607-3500
    charles.calvin@faegrebd.com

     

    Board of Governors Rep

    Randall G. Alt
    Moye White LLP
    1400 16th St, 6th Fl
    Denver, CO 80202
    (303) 292-7914
    randy.alt@moyewhite.com

    Council Members

    Kristin A. Decker
    Douglas County Attorney's Office
    100 Third St
    Castle Rock, CO  80104
    (303) 660-7414
    kdecker@douglas.co.us

    James J. Killean
    Ireland Stapleton Pryor & Pascoe PC
    717 17th St Ste 2800
    Denver, CO 80202
    (303) 628-3608
    jkillean@irelandstapleton.com

    Joel A. Mayo
    Campbell Killin Brittan & Ray LLC
    270 St. Paul St Ste 200
    Denver, CO 80206
    (303) 394-6303
    jmayo@ckbrlaw.com

    Diana M. Wendel
    Sherman & Howard LLC
    633 17th St Ste 3000
    Denver, CO  80202
    (303) 297-2900
    dwendel@sah.com

    Jody H. Alderman
    Alderman Bernstein LLC
    101 University Blvd Ste 350
    Denver, CO 80206
    (720) 460-4205
    jha@ablawcolorado.com

    Katy J. Dunn
    Forest City Stapleton
    7351 E 29th Ave
    Denver, CO 80238
    (303) 915-6267
    kdunn@forestcity.net

    Eben P. Clark
    BakerHostetler
    1801 California St Ste 4400
    Denver, CO 80202
    (303) 764-4042
    eclark@bakerlaw.com

    Joseph E. Lubinski
    Ballard Spahr LLP
    1225 17th St Ste 2300
    Denver, CO 80202
    (303) 292-2400
    lubinskij@ballardspahr.com

    Jean C. Arnold
    Arnold & Arnold LLP
    7691 Shaffer Pkwy Ste A
    Littleton, CO 80127
    (720) 962-6010
    jeanarnold@arnoldarnold.com

    Suzanne M. Leff
    Winzenburg Leff Purvis & Payne LLP
    8020 Shaffer Pkwy Ste 300
    Littleton, CO 80127
    (303) 863-1870
    sleff@wlpplaw.com

    Michael C. Payne
    Coan Payton & Payne LLC
    103 W Mountain Ave Ste 200
    Fort Collins, CO 80524
    (970) 225-6700
    mpayne@cp2law.com

    Sam D. Starritt
    Dufford Waldeck Milburn & Krohn
    744 Horizon Ct Ste 300
    Grand Junction, CO 81506
    (970) 248-5867
    starritt@dwmk.com

    View Real Estate Section Liaisons, Committees, and Ex Officio Members.

    Committee Reports

    CBA Board of Governors

    The Real Estate Section’s Representative on the Board of Governors is Randy Alt (randy.alt@moyewhite.com).

    Legislative Policy Committee

    Andrew M. Toft (andrewmtoft@andrewmtoft.com) serves as the Real Estate Law Section’s liaison to the Legislative Policy Committee.

    Title Standards Committee

    Julia Waggener, Hoffman Crews Nies Waggener & Foster LLP jwaggener@hcnwf-law.com, currently serves as the Real Estate Section’s liaison to the Legislative Policy Committee.

    Trust and Estate Section

    David W. Kirch, David W. Kirch, P.C., (dkirch@dwkpc.net), currently serves as the Trust and Estate Section liaison to the Real Estate Section Council.

    Real Estate Forms Committee

    Geoffrey P. Anderson, Sweetbaum Sands Anderson PC, ganderson@sweetbaumsands.com, currently serves as the Real Estate Section’s liaison to the Real Estate Commission Forms Committee.

    Interprofessional Committee

    The Real Estate Section’s liaisons to the Interprofessional Committee are Kristen A. Decker, Douglas County Attorney's Office (kdecker@douglas.co.us), Katy J. Dunn, Forest City Stapleton (kdunn@forestcity.net), and Suzanne M. Leff, Winzenburg Leff Purvis & Payne LLP (sleff@wlpplaw.com).

    Colorado Housing Council

    The Real Estate Law Section’s liaisons to the Colorado Housing Council are Diana Wendel, Sherman & Howard LLC (dwendel@sah.com), and Katy J. Dunn, Forest City Stapleton (kdunn@forestcity.net).

    Membership and Practice Development Committee

    Committee members include James J. Killean, Ireland Stapleton Pryor & Pascoe PC (jkillean@irelandstapleton.com), Michael C. Payne, Coan Payton & Payne LLC (mpayne@cp2law.com), and Sam D. Starritt, Dufford Waldeck Milburn & Krohn (starritt@dwmk.com).

    Ethics Committee

    Deanne R. Stodden, Rogers & Stodden, LLC (dstodden@cp2law.com) is the liaison to the Colorado Bar Association Ethics Committee.

    Colorado Supreme Court’s Civil Rules Committee

    Frederick B. Skillern, Montgomery Little Soran & Murray, PC, (fskillern@montgomerylittle.com), is the liaison to the Colorado Supreme Court’s Civil Rules Committee.

    Additional Information

    For additional information regarding the activities and responsibilities of the members of the Real Estate Law Section Council, see the article on the Real Estate Law Section page of the Colorado Bar Association Website entitled “What Does the Real Estate Law Section Do For Me?” available here.

    Legal Writing Opportunities

    Article Opportunities—The Colorado Lawyer

    The Real Estate Section encourages all aspiring authors to contribute articles (or even just ideas for articles) for publication in the real estate column of The Colorado Lawyer. Articles submitted need to provide a balanced discussion of new, developing or interesting areas relating to the practice of real estate law in Colorado or nationally. To encourage your creative energy, the Real Estate Law Section will honor the best real estate article published in The Colorado Lawyer during 2015/2016 with a stipend of $500 to the contributing author or firm. Articles should be submitted to James J. Killean, Ireland Stapleton Pryor & Pascoe PC (jkillean@irelandstapleton.com) for consideration.

    Articles, Practice Pointers, and Other Contributions Needed for Real Estate Law Section Newsletter

    All members of the Real Estate Section are invited to contribute to the Newsletter. Please submit articles, practice pointers and other contributions to James J. Killean, Ireland Stapleton Pryor & Pascoe PC, jkillean@irelandstapleton.com.

    Request for Input on Real Estate Section Web Page

    We are working to improve the Real Estate Section page of the Colorado Bar Association website and need your input and suggestions. Are there links or other information you have expected to find on the page only to have your hopes dashed? Have you discovered aspects of the site that you feel could be more user-friendly or informative? Please e-mail your comments to Leah Achen at lachen@cobar.org. We welcome your suggestions and we will carefully review all of them.

    Stay up-to-date with the Real Estate Section by visiting the CBA Real Estate Section website.

    This newsletter is for information only and does not provide legal advice.

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    Subsections and Committees of the Business Law Section

    Antitrust and Consumer Protection Subsection

    Bankruptcy Subsection

    Business Entities Subsection

    Commercial Law Subsection/E-Commerce

    Financial Institutions Subsection

    Franchise Law Subsection

    International Transactions Subsection

    Legislative Drafting Committee

    Mergers & Acquisitions Subsection

    New Lawyers Subsection

    Non-Profit Entities Subsection

    Securities Subsection

    Privately Held Business Subsection